Rivera-Peraza v. Holder (9th Cir 6-29-2012) on exceptional & extreme hardship
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITRAFAEL GERARDO RIVERA-PERAZA, Petitioner, No. 08-70455 v. Agency No. A027-140-906ERIC H. HOLDER Jr., AttorneyGeneral, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 14, 2011—Pasadena, California Filed June 29, 2012 Before: William A. Fletcher and Johnnie B. Rawlinson, Circuit Judges, and James K. Singleton, Senior District Judge.* Opinion by Judge William A. Fletcher *The Honorable James K. Singleton, Senior District Judge for the U.S.District Court for Alaska, sitting by designation. 7739
RIVERA-PERAZA v. HOLDER 7741 COUNSELGregory Joseph Boult, GLECKMAN & SINGER, Los Ange-les, California, for the petitioner.Carmel Aileen Morgan, Elizabeth R. Chapman, UNITEDSTATES DEPARTMENT OF JUSTICE, Washington, D.C.,for the respondent. OPINIONW. FLETCHER, Circuit Judge: Petitioner Rafael Gerardo Rivera-Peraza (“Rivera”), anative and citizen of Mexico, was convicted of armed robberywith a firearm in California in 1981. After serving most of hissentence, Rivera was deported in 1984. Since then, he hastwice reentered this country without inspection. The govern-ment began a removal proceeding against Rivera in 2004.Rivera admitted removability and sought adjustment of statusto lawful permanent resident. Because his 1981 convictionrendered him inadmissible under 8 U.S.C.§ 1182(a)(2)(A)(i)(I), Rivera applied for a waiver of inadmis-sibility under § 1182(h)(1)(A) and (B). See 8 U.S.C.§ 1255(i)(2)(A) (requiring applicant for adjustment of statusto permanent resident to be admissible to the United States). The Immigration Judge (“IJ”) denied Rivera’s applicationfor waiver of inadmissibility. The Board of ImmigrationAppeals (“BIA”) affirmed, concluding that Rivera failed tosatisfy the hardship standard of 8 C.F.R. § 1212.7(d). Riveratimely filed a petition for review. For the reasons set forth
7742 RIVERA-PERAZA v. HOLDERbelow, we conclude that the BIA properly applied § 1212.7(d)to Rivera. We therefore deny the petition. I. Background Rivera entered the United States in 1976 without inspec-tion. Five years later, he was convicted of armed robberyunder California Penal Code §§ 211 and 12022. He receiveda six-year sentence. In 1984, after serving almost four years,he was transferred to Immigration and Naturalization Service(“INS”) custody and deported to Mexico. Two days later, hereentered the United States without inspection. In 1989, still in the United States, Rivera met and marriedEdelmira Herrera. The couple has three United States citizenchildren: Edelmira Jr. born in 1990, Rafael Jr. born in 1992,and Gabriela born in 1994. In 1994, the INS approved an I-130 visa petition that Rivera’s wife, Edelmira, Sr., filed on hisbehalf. In March 2003, Edelmira, Sr. became a naturalizedUnited States citizen. In 1991, Rivera made a day trip to Mexico to visit his sickmother. When he attempted to reenter the United States hefalsely claimed he was a United States citizen. The immigra-tion officer refused admission. Rivera reentered the UnitedStates two days later without inspection. On November 2, 2004, Rivera was served with a Notice toAppear and charged with removability for (i) being present inthe United States without having been admitted or paroledand (ii) having been convicted of a crime involving moral tur-pitude. Rivera sought relief from removal through an applica-tion for adjustment of status under 8 U.S.C. § 1255(i).Because his wife was a United States citizen who had alreadyobtained an I-130 visa for him, Rivera was potentially eligiblefor adjustment. However, Rivera’s armed robbery convictionmade him inadmissible under § 1182(a)(2)(A)(i)(I) (convic-tion of a crime of moral turpitude). Admissibility is a neces-
RIVERA-PERAZA v. HOLDER 7743sary precondition for adjustment of status. 8 U.S.C.§ 1255(i)(2)(A). Rivera therefore applied for a waiver of inad-missibility under § 1182(h). An applicant for adjustment of status with a criminal recordis eligible for a discretionary waiver of inadmissibility under§ 1182(h) in two circumstances. First, the Attorney Generalhas discretion to grant a waiver if the conviction occurredmore than fifteen years prior to the application for adjustmentof status; if admission is not contrary to the welfare, safetyand security of the United States; and if the applicant has beenrehabilitated. § 1182(h)(1)(A). Second, the Attorney Generalhas discretion to grant a waiver if denial of admission wouldresult in extreme hardship to the applicant’s citizen or lawfulresident spouse, parents and children. § 1182(h)(1)(B). Riverasought a waiver under both provisions. An Immigration Judge (“IJ”) conducted a hearing at whichRivera, his wife, and his eldest daughter testified. The IJnoted that Rivera needed the following to be eligible to adjuststatus: (1) a waiver of inadmissibility under § 1182(h) for his1981 armed robbery conviction, (2) permission under 8C.F.R. § 1212.2 to return to the United States followingdeportation; and (3) a waiver under 8 U.S.C. § 1182(i) for his1991 false claim to citizenship. The IJ held that Rivera failedto satisfy the first of these three requirements. He did notaddress the other two. If an applicant for a waiver of inadmissibility under§ 1182(h) has committed a “violent or dangerous” crime, heor she must satisfy a heightened standard set forth in 8 C.F.R.§ 1212.7(d). Under that standard, the applicant must show“extraordinary circumstances” such as “exceptional andextremely unusual hardship.” Id. The IJ concluded that Rive-ra’s 1981 armed robbery was a “violent or dangerous” crimewithin the meaning of § 1212.7(d), and that Rivera did notmeet the “exceptional and extremely unusual hardship” stan-
7744 RIVERA-PERAZA v. HOLDERdard. Without a waiver of inadmissibility, Rivera was statu-torily ineligible for adjustment of status. The BIA affirmed. It held that the “exceptional andextremely unusual hardship” standard of § 1212.7(d) appliesto discretionary waivers sought under both 8 U.S.C.§ 1182(h)(1)(A) (the rehabilitation waiver) and (h)(1)(B) (theextreme hardship waiver). Under § 1212.7(d), the BIA con-sidered the hardship to Rivera himself, as well as to his wifeand children, that would result from his inadmissibility. TheBIA concluded that the serious hardships to Rivera and hisrelatives were “outweighed” by his “very serious criminalactivity” and “well-established disdain for the immigrationlaws under which he now seeks shelter.” Rivera filed a timely petition for review, contending thatthe BIA made a mistake of law in applying the hardship stan-dard of § 1212.7(d) to his waiver application. II. Jurisdiction and Standard of Review We have jurisdiction to review “constitutional claims orquestions of law raised upon a petition for review.” 8 U.S.C.§ 1252(a)(2)(D). The government contends that Rivera chal-lenges only the agency’s discretionary decision to deny hiswaiver application, and that we therefore lack jurisdictionover his petition under 8 U.S.C. § 1252(a)(2)(B)(I). However,“this contention misconceives [Rivera’s] claim.” Mejia v.Gonzales, 499 F.3d 991, 999 (9th Cir. 2007). Rivera does notmerely challenge the agency’s exercise of discretion. He“contends specifically that the BIA used an erroneous legalstandard in [its] analysis.” Id. We have jurisdiction to reviewthat legal question. “[W]e review de novo the BIA’s determination of questionsof law, except to the extent that deference is owed to its inter-pretation of governing statutes or regulations.” Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011 (9th Cir. 2006).
RIVERA-PERAZA v. HOLDER 7745 III. Analysis Rivera argues that the heightened hardship standard estab-lished by 8 C.F.R. § 1212.7(d) improperly raises the level ofrequisite hardship under § 1182(h)(1)(B) from “extreme” to“exceptional and extremely unusual.” He argues, further, that§ 1212.7(d) cannot “logically apply” to waivers of inadmissi-bility sought under § 1182(h)(1)(A) because that provisiondeals with lapse of time, national safety and security, andrehabilitation, rather than hardship. Finally, he argues that itis illogical to apply the hardship standard of § 1212.7(d) towaivers of admissibility sought under § 1182(h)(1)(B)because the statutory provision contains restrictive languageidentifying those who must suffer “extreme hardship,”whereas § 1212.7(d) does not contain comparably restrictivelanguage. Compare § 1182(h)(1)(B) (requiring that an aliendemonstrate “extreme hardship to the United States citizen orlawfully resident spouse, parent, son, or daughter of suchalien”), with § 1212.7(d) (requiring that “an alien clearly dem-onstrate[ ] that the denial of . . . admission . . . would resultin exceptional and unusual hardship”).  Rivera’s arguments are largely foreclosed by our deci-sion in Mejia, 499 F.3d 991, in which we expressly rejectedthe contention that § 1212.7(d) altered or superseded the hard-ship standard of § 1182(h)(1)(B). We held that § 1212.7(d)requires that “extraordinary circumstances,” such as “excep-tional and extremely unusual hardship,” exist for someoneconvicted of a “violent or dangerous crime,” whether a waiverof inadmissibility is sought under § 1182(h)(1)(A) (the reha-bilitation waiver) or (h)(1)(B) (the hardship waiver). Id. at995. We wrote: The regulation does not alter or supercede the “ex- treme hardship” standard. Rather, the regulation sup- plements and gives definition to the standard to be applied in the cases of individuals who have commit- ted violent or dangerous crimes. The Attorney Gen-
7746 RIVERA-PERAZA v. HOLDER eral, in the exercise of his discretion, suggests that the equities disfavor, although do not preclude, relief in this circumstance. Given Congress’s broad grant of discretion, this approach is not inconsistent with the statute or the Attorney General’s authority.Id. at 996. In reaching our decision in Mejia, we relied in part on Fed-eral Register commentary accompanying the regulation. Id. at995 (citing 67 Fed. Reg. 78675 (Dec. 26, 2002)). In that com-mentary, the Attorney General rejected the suggestion that theregulation altered the hardship requirement in§ 1182(h)(1)(B), noting that the hardship standard of§ 1212.7(d) “does not relate to the threshold eligibilityrequirement of ‘extreme hardship’ ” in § 1182(h)(1)(B). 67Fed. Reg. at 78677. Rather, the Attorney General wrote, theregulation “governs only the exercise of discretion . . . afterthe alien has met the threshold requirements.” Id. (emphasisadded).  Because the hardship standard of § 1212.7(d) operatesseparately from the hardship standard of § 1182(h)(1)(B), it isnot “illogical” that hardship under the two standards is evalu-ated with respect to differently defined groups of people. Sec-tion 1182(h)(1)(B) directs the agency to consider hardship toonly the alien’s lawfully admitted or citizen spouse, parentsand children. Hardship to the alien himself or herself is irrele-vant. By contrast, § 1212.7(d) requires that “an alien clearlydemonstrate[ ] . . . exceptional and extremely unusual hard-ship,” without limiting the hardship to specified people. Thegovernment argues to us that § 1212.7(d) properly directs theagency to consider hardship to the alien as well as to his orher relatives. We agree with the government. As pointed outby the government, the BIA did precisely what it was directedto do. The BIA recounted in its opinion that it considered “theserious hardships likely to befall the respondent and his rela-tives in the event of the respondent’s removal.”
RIVERA-PERAZA v. HOLDER 7747 Conclusion As we made clear in Mejia, the hardship standard of 8C.F.R. § 1212.7(d) applies to those who have committed “vio-lent or dangerous crimes” and who seek a waiver of inadmis-sibility under 8 U.S.C. § 1182(h)(1). As we make clear today,§ 1212.7(d) directs the agency to consider hardship to thealien and to his or her relatives. PETITION FOR REVIEW DENIED.